FLAS Fellow research: Rule of law in Canada for Indigenous Peoples post-Tsilhqot’in

In 2014, the Supreme Court of Canada ruled in Tsilhqot’in Nation v. British Columbia that the Tsilhqot’in Nation had a claim of Aboriginal title to their traditional lands, and disallowed provincial claims for logging without approval from the title-holder. The decision expanded avenues for Indigenous Peoples to claim title rights on land. The case somewhat changed Indigenous title law in Canada and has implications for resource extraction disputes, particularly in British Columbia. Last quarter, I decided to analyze the rule of law implications of the Tsilhqot’in decision. There are many definitions of the rule of law, but it is most commonly defined as the level at which individuals and institutions are equally subject to the law. Using the definitions of a few known rule of law scholars, I analyzed whether Tsilhqot’in improved rule of law within in Canada. Unfortunately, though well-intentioned, and undoubtedly an expansion of Aboriginal title, the case did little to repair the long simmering tensions between Indigenous Peoples and Canada’s Western legal institutions. Tsilqhot’in is another example of the Supreme Court of Canada attempting to remedy the wrongs of the past, while Parliament fails to supply a more definitive law regarding Indigenous title. Tsilhqot’in is not as ameliorative or as sweeping as the prior decision in Delgamuukw v. British Columbia (1997), and unfairly excludes Indigenous bands inside the Numbered Treaties, but it does increase avenues for legal remedy to communities who were long left without legal recourse. After researching these rule of law implications last quarter, I am now building on my research and comparing Canadian constitutional law with the United States’ constitutional treatment of Indigenous Peoples. I look forward to continuing my exploration into Indigenous legal issues in Canada.

Boo Dodson is a Foreign Language and Area Studies Fellow (FLAS) in French at the 300 level. He previously received two FLAS summer awards in 2017 and 2018. This fall he will study international relations and economics at Johns Hopkins University’s School of Advanced International Studies (SAIS) in Washington, D.C., and plans to graduate with a dual JD/MA in 2021. Boo is considering a future career as an international trade attorney, arbitrator, or joining the Foreign Service.